UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1318

EILEEN M. HYLIND,
Plaintiff - Appellant,
v.
XEROX CORPORATION,
Defendant Appellee,
LAURENCE KAYE,
Intervenor Appellee.
------------------------------------EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellant.

No. 11-1320

EILEEN M. HYLIND,
Plaintiff - Appellee,
v.
XEROX CORPORATION,
Defendant Appellant,
LAURENCE KAYE,
Intervenor Appellee.

------------------------------------EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Amicus Supporting Appellee.

Appeals from the United States District Court for the District
of Maryland, at Greenbelt.
Peter J. Messitte, Senior District
Judge. (8:03-cv-00116-PJM)

Submitted:

January 10, 2012

Decided:

June 6, 2012

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished

per curiam opinion.

Eileen M. Hylind, Appellant/Cross-Appellee Pro Se.

Elena D.
Marcuss,
MCGUIREWOODS,
LLP,
Baltimore,
Maryland,
for
Appellee/Cross-Appellant.
Laurence Samuel Kaye, Rockville,
Maryland, for Intervenor-Appellee.
Anne Noel Occhialino, U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus Supporting Appellant/Cross-Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
In

this

case,

Eileen

M.

Hylind

contended

that

her

employer, Xerox Corporation, discriminated against her on the

basis of her gender.
claims,

and

million

in

Hylind

A jury agreed with her on certain of her

was

damages.

eventually

Both

Hylind

awarded
and

approximately

Xerox

various aspects of the proceedings below.

now

appeal

$1.2
from

For the reasons that

follow, we affirm in part, vacate in part, and remand.

I.

Xeroxs Cross-Appeal

We begin with the arguments that Xerox raises in its

cross-appeal.

Xerox first claims that the district court erred

in denying its post-trial motion for judgment as a matter of law

on

each

of

Hylinds

claims

relating

to

her

reassignment

certain sales accounts associated with Giant Food.

to

Our review

is de novo, and the district courts judgment will be upheld if

a

reasonable

jury,

viewing

the

evidence

in

the

light

most

favorable to the nonmovant, could have reasonably reached the

conclusion adopted by the jury in this case.
Colleton
2002).
U.S.

Med.

Center,

Inc.,

290

F.3d

639,

Dennis v. Columbia
644-45

(4th

Cir.

Xerox relies on Delaware State College v. Ricks, 449

250,

258

(1980),

to

argue

that

Hylinds

discrimination

claims accrued prior to the limitations period, but our review

of the record persuades us otherwise.
3

At trial, the jury heard

a substantial amount of evidence suggesting that Hylind did not

receive

final

reassignments
period.
1988).

and

until

English

unequivocal
a

v.

time

that

Whitfield,

notice
fell

858

of

within

F.2d

the

the

957,

account

limitations

961

(4th

Cir.

Thus, to the extent that Xerox contends that Hylind

received unequivocal notice prior to the limitations period, its

position

simply

contrary.

attacks

the

jurys

Accordingly,

the

district

factual
court

finding
properly

to

the

denied

Xeroxs motion for judgment as a matter of law.

Xerox also contends that the district court improperly
denied its motion for a new trial, claiming irremediable unfair
prejudice stemming from the introduction at trial of several
photographs

of

partially

nude

women.

The

district

courts

denial of a motion for new trial is reviewed for an abuse of

discretion.

Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 500

(4th Cir. 2001).

A district court should grant a new trial if

(1) the verdict is against the clear weight of the evidence, or

(2) is based upon evidence which is false, or (3) will result in
a miscarriage of justice, even though there may be substantial
evidence

which

Knussman

v.

would

Maryland,

prevent
272

(internal citation omitted).

the

F.3d

direction
625,

639

of
(4th

verdict.

Cir.

2001)

Under the circumstances of this

case, we conclude that the photographs were not so prejudicial

that the district courts denial of Xeroxs motion was an abuse

of discretion.

See id.

Next, Xerox argues that the district court erred in

applying

Marylands

6%

prejudgment

interest

rate

to

Hylinds

back pay award because the actual rate of inflation during the
years

in

question

without merit.

hovered

around

2.5%.

Xeroxs

argument

is

The rate of pre-judgment interest for cases

involving federal questions is a matter left to the discretion

of the district court.

Quesinberry v. Life Ins. Co. of N. Am.,

987 F.2d 1017, 1031 (4th Cir. 1993) (en banc).

the

rate

of

prejudgment

bound by state law.

interest,

the

In determining

district

court

is

not

That does not mean, however, that the

district court may not in its discretion choose to apply the

interest rate provided for by state law.
Myers

Inc.,

690

F.2d

1072,

1074

(4th

Cir.

EEOC v. Liggett &

1982).

Despite

Xeroxs assertions that an empirical economic analysis of the

years in question would dictate a lower rate of interest, it was
not an abuse of discretion for the district court to disagree.
Finally, Xerox contends that the district court erred
in granting the motion to intervene filed by Laurence Kaye, an
attorney who represented Hylind through trial and was discharged
by her while the damages awards were being litigated before the
district court.

The district courts decision on a motion to

intervene is reviewed for an abuse of discretion.

5

Safety-Kleen,

Inc. v. Wyche, 274 F.3d 846, 867 (4th Cir. 2001).

Some courts

have expressed skepticism that a former attorney of a client may

intervene

as

of

right

in

his

clients

suit

to

interest in a potential award of attorneys fees.

protect

his

See Butler,

Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 176-79 (2d
Cir.

2001)

(discussing,

among

other

cases,

Gaines

v.

Dixie

Carriers, Inc., 434 F.2d 52, 54 (5th Cir. 1970) (per curiam),
which permitted intervention as of right).
that issue in the present case.

We need not decide

Instead, pursuant to Fed. R.

Civ. P. 24(b)(2), a district court may permit an applicant to

intervene who has a claim or defense that shares with the main
action a common question of law or fact.

On this basis, we

conclude that the district court did not commit an abuse of

discretion in granting Kayes motion to intervene.

See Venegas

v. Skaggs, 867 F.2d 527, 529-31 (9th Cir. 1989), affd on other
grounds sub. nom. Venegas v. Mitchell, 495 U.S. 82 (1990).

II.

Hylinds Appeal

Hylind also raises numerous issues on appeal, which we

address in turn.

First, Hylind asserts that the district court

improperly dismissed her quid pro quo and hostile environment

claims as barred by the statute of limitations.

To the extent

that Hylinds hostile work environment claim was based on the

alleged sexual misconduct of her supervisors prior to 1992, we
6

agree with the district court that her claim was time barred.
See Natl R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118
(2002).

Moreover, to the extent that Hylinds quid pro quo and

hostile work environment claims were based on acts that arguably

fell within the applicable 300-day statutory period to bring
Title

VII

claims,

42

U.S.C.

2000e-5(e)(1),

Hylind

has

not

demonstrated that her recovery could be any different if she had

proceeded, and was ultimately successful on, a quid pro quo or
hostile work environment theory.
Here, the jury returned a verdict in favor of Hylind
on two claims, awarding $1,000,000 in compensatory damages on
her sexual discrimination claim, and $500,000 in compensatory
damages
court

on

her

reduced

retaliation
the

jurys

claim.
award

Thereafter,

of

compensatory

the

district

damages

Hylinds successful claims to the $300,000 statutory cap.

if

other

related

Title

VII

claims

brought

by

Hylind

on

Even

against

Xerox ultimately were successful, such claims also would have

been subject to the statutory cap.

42 U.S.C. 1981a(b)(3)(D);

Black v. Pan Am. Labs., LLC, 646 F.3d 254, 264 (5th Cir. 2011)
(adopting the reasoning of [o]ther courts [that] have uniformly
held that Title VIIs damages cap applies to each party in an
action, not to each claim (citing cases)).

Thus, we will not

disturb the district courts judgment on this issue.

Hylind also contends that the district court erred in

refusing to permit her to amend her complaint to add additional
state law and federal claims, which would have enabled her to
evade the statutory damage cap on her Title VII claims.

We

disagree with Hylind and hold that the district courts denial
of her motion was not an abuse of discretion.

Equal Rights

Center v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir.),
cert. denied, 131 S. Ct. 504 (2010); Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006) (en banc).
Next, Hylind contests the district courts denial of
her post-trial motion for judgment as a matter of law on her
Title VII sex discrimination and retaliation claims involving
her

removal

from

Xeroxs customers.

an

account

associated

with

Vitro,

one

of

Hylind argues that she only needed to show

that sex was a motivating factor for the employers decision to

remove her from the Vitro account.

However, while the district

court recognized that Hylind was entitled to a motivating factor

instruction
counsel

the

under

mixed-motive

opportunity

to

framework

proceed

on

that

and

offered

basis,

her

Hylinds

counsel instead opted to proceed under the pretext framework in

order to prevent Xerox from raising a particular affirmative

defense. 1

We decline at this stage of the litigation to relieve

Hylind of the consequences of her tactical decision at trial.

And, in any event, Hylind has not demonstrated how these claims,
if ultimately successful, might have resulted in a different
recovery.

42 U.S.C. 1981a(b)(3)(D); Black, 646 F.3d at 264.

Hylind also raises several challenges to the damages

determinations

made

by

the

district

court.

courts

calculation of damages is a finding of fact and therefore is

reviewable

only

for

clear

error,

but

to

the

extent

those

calculations were influenced by legal error, review is de novo.

Universal

Furniture

Intern.,

Inc.

v.

Collezione

Europa

USA,

Inc., 618 F.3d 417, 427 (4th Cir. 2010).

Hylind
determinations
improperly

first
as

to

intruded

on

complains
the
the

that

duration

the

and

fact-finding

district

rate

of

duties

of

courts

back
the

pay
jury.

However, the determination of back pay is an equitable matter

for the judge, not the jury.
F.2d

1413,

1424

(4th

Cir.

See Duke v. Uniroyal Inc., 928

1991)

(holding

that

an

award

of

In mixed-motive cases, if the employer demonstrates that

it would have taken the same action absent the impermissible
motivating factor, the employer has a limited affirmative
defense that does not absolve it of liability, but restricts the
remedies available to a plaintiff . . . [only to] declaratory
relief, certain types of injunctive relief, and attorneys fees
and costs.
Desert Palace, Inc. v. Costa, 539 U.S. 90, 94
(2003).

compensation for future lost earnings, or front pay, is an

equitable matter for the court, not the jury); Lutz v. Glendale
Union High Sch., 403 F.3d 1061, 1069 (9th Cir. 2005) (holding
that an award of back pay under Title VII remains an equitable
remedy to be awarded by the district court in its discretion);
Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 500-01
(7th Cir. 2000) (same, with respect to back pay and front pay).
Hylind also has not pointed to any other factor suggesting that
the district court abused its discretion regarding the duration
of the back pay it awarded her, or with respect to its decision
to deny her front pay.

See Universal Furniture, 618 F.3d at

427; Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1278
(4th Cir. 1985).

Accordingly, we affirm the district courts

conclusions as to the duration of the back pay award. 2

By contrast, we conclude that Hylinds attack on other
aspects of the back pay award holds more merit.

In particular,

Hylind

in

argues

that

the

district

court

erred

offsetting

Hylind also urges that the Lilly Ledbetter Fair Pay Act of
2009 (the FPA) permits her to recover damages for Xeroxs much
earlier employment decisions because Xeroxs conduct exhibited a
pattern of discriminatory compensation or other practice such
that the statute of limitations for all of its conduct runs from
the last discriminatory act it took.
See 42 U.S.C. 2000e5(e)(3)(A) (West Supp. 2011). We agree with Xerox that the FPA
is inapposite to this case.
See Noel v. Boeing Co., 622 F.3d
266, 274 (3d Cir. 2010); Schuler v. PricewaterhouseCoopers, LLP,
595 F.3d 370, 375 (D.C. Cir. 2010).

10

certain disability payments received by Hylind from her back pay

award.

In this respect, Hylind asserts that the district court

misapplied

the

collateral

source

rule,

which

provides

that

compensation from a collateral source should be disregarded in

assessing . . . damages.
380, 389 (4th Cir. 2010).

Sloas v. CSX Transp. Inc., 616 F.3d

The defendant bears the burden of

demonstrating that it is entitled to an offset.

Id.

Relying on Szedlock v. Tenet, 61 F. Appx 88, 93 (4th

Cir. 2003) (unpublished) (per curiam), and Fariss v. Lynchburg
Foundry, 769 F.2d 958, 966 (4th Cir. 1985), for the proposition
that collateral funds are those received from a source distinct
from the employer, the district court ruled that the payments
Hylind received under the disability plan were not collateral
largely because the plan was a benefit that Hylind received as
an employee of Xerox and there was some indication that Xerox
contributed to the payments.
While the parties motions pertaining to damages were
pending before the district court, however, we held that the
mere fact [t]hat a benefit comes from the defendant . . . does
not itself preclude the possibility that it is from a collateral
source.

Sloas, 616 F.3d at 389.

Instead, a plaintiff may

receive benefits from the defendant himself which, because of

their nature, are not considered double compensation for the
same injury but are deemed collateral.
11

Id. at 390.

According

to

Sloas,

if

the

defendant

provides

benefit to the plaintiff specifically to compensate him for his

injury, the benefit does not constitute a collateral source,
and the payments may be offset against the damage award.

Id.

By contrast, a payment is from a collateral source and should

not be offset if the defendant does not provide the benefit to
the

plaintiff

as

compensation

for

his

or

her

injury.

Id.

Under Sloas, in other words, a benefit provided by the defendant

is from a collateral source unless it results from payments
made

by

the

liability.

employer
Id.

in

order

to

indemnify

itself

against

Accord Davis v. Odeco, Inc., 18 F.3d 1237,

1244 (5th Cir. 1994).

Although Xerox claims that Sloas is inapplicable to
Hylinds case, we disagree.

Accordingly, we vacate the damages

award entered in this case and remand to the district court for
it to re-assess its offset determinations in light of Sloas. 3
We have carefully reviewed each of the other arguments
asserted

by

Hylind,

including

her

contentions

regarding

the

We emphasize that we hold only that Sloas is applicable to

the analysis of this case; we take no view as to whether Sloas,
as applied to Hylinds disability payments, directs that they be
offset from her back pay award. We leave that determination in
the
first
instance
to
the
district
court
upon
further
development of the record.
See generally Sloas, 616 F.3d at
390; Phillips, 953 F.2d at 930; Davis, 18 F.3d at 1244; EEOC v.
OGrady, 857 F.2d 383, 391 (7th Cir. 1988).

12

district

courts

denial

of

injunctive

relief,

failure

to

structure her damages award to allow her to realize certain tax

advantages,

rulings

on

costs,

and

denial

of

her

post-trial

motion for judgment as a matter of law with respect to punitive

damages.

Our review of the record convinces us that each of

Hylinds arguments is without merit.

Accordingly, we affirm the judgment of the district
court

in

each

respect,

except

for

its

decision

to

Hylinds disability payments from her back pay award.

offset
On that

issue, we vacate the district courts judgment and remand the

case for entry of a damages award consonant with our holding in
Sloas.

We also deny Hylinds pending motion to reconsider the

courts order granting leave for Xerox to file a supplemental

appendix and her pending motion to supplement the record with
certain medical information.

We dispense with oral argument

because the facts and legal contentions are adequately presented

in the material before the Court and argument will not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

13